On What Night Would You Host a Bachelor Party? And Does the Choice of Night Give Rise to Reasonable Suspicion?

An interesting question I'm sure we've all pondered: on what night should one host a bachelor party?

United States v. Rodriguez, No. 10-1874 (6th Cir. June 12, 2012) (unpublished). 

Judges McKeague, White, and Barrett (S.D. Ohio).

Per curiam.

Cocaine and heroin case.  Defendant appealed denial of motion to suppress.  COA affirmed.

Michigan State Trooper stopped D on I-94.  The trooper had been sitting in a marked police car and had been watching eastbound traffic.  Trooper saw the D lean back in his seat "in an apparent attempt to hide behind the door post" when the D passed the trooper.  Trooper began following the D.  Stopped D for following a semi-truck too closely.

After stop, no ticket issued.  Trooper told D that D was free to go, but then asked if he could ask the D something.  About four minutes of questions.  D ultimately consented to a search of the van and officers found kilos of heroin and cocaine. 

B/c there was a traffic violation, the stop was legal.  D did not provide testimony to contradict a finding that he was driving too closely behind the truck.

D not unlawfully detained after end of traffic stop b/c a reasonable person would have believed they were free to go after being told they were "good to go."  Police may ask questions after a traffic stop has ended.  No factors to indicate there was a further seizure here.   

The D had been in the back of the police car, so more analysis was required.  But still not a seizure, the COA found, b/c trooper had let D in the car to get out of the cold (D had been standing outside). 

And, COA continued, even if there was a seizure, there was reasonable suspicion to support it.  And here's where the bachelor party comes in. 

Factors COA found established reasonable suspicion:

* D had leaned back in his seat when he passed the patrol car in an apparent attempt to hide his face behind the door post;

* D slowed down when he passed the patrol car; 

* That stretch of I-94 (between Chicago and Detroit) is considered a "pipeline corridor" for drugs; 

* The van smelled strongly of air fresheners (commonly used to mask drug odors);

* The van was not registered to D; 

* D had stated that he was going to his cousin’s bachelor party, but he said he did not know the date of the wedding;

* D said the party was on a Thursday, "an unusual night for a bachelor party."

COA found that these factors, viewed in their totality, were sufficient to establish reasonable suspicion.

Judge White dissented.

She found that the D had been detained without reasonable suspicion after the traffic stop was completed.  A reasonable person would not have felt free to leave.  No reasonable suspicion to justify seizure.  All the factors the majority cited were weak.  "There is nothing inherently suspicious about a bachelor party being held on a Thursday." 

Consent to search was tainted.  Evidence should have been suppressed. 

Stop! Or I'll tase you! (+FSA)

I just wanted to blog this case b/c the police are quoted as saying: "Stop! Police! Or I'll tase you!" There's just charm to such cries! (Plus, I was a big Tom Swift fan growing up, and I read somewhere that TASER is a random acronym. The guy who came up with the taser didn't know what to call it, so he decided on Tom A. Swift's Electric Rifle, or TASER. You really needed to know that. . . .)

So, Court of Appeals upholds denial of a motion to suppress in United States v. Ruff, No. 08-4428 (6th Cir. Sept. 9, 2011) (unpublished). Panel of Chief Judge Batchelder, and Judges Boggs and White.

Defendant argued that the officer's initial approach to the defendant, during which the officer identified himself as a police officer, was an arrest requiring probable cause. Defendant argued the officer lacked PC for an arrest, and even reasonable suspicion for a Terry stop. Court finds the encounter was neither an arrest nor a Terry stop. The defendant was not seized. The officers had approached some men drinking beer in a high-crime area on a stoop with no-trespassing signs around it (after they had received a tip re drugs and a gun from a reliable informant). The officers identified themselves as police officers. The defendant immediately fled.

Court goes on to say that even if there was a seizure, it was, at most, a Terry stop. The officers had received a tip (from a reliable informant) that a person matching the defendant's description had drugs and a gun. Such a tip can establish reasonable suspicion to support a stop. So there was reasonable suspicion to support a stop here.

The defendant next argued that he was arrested when the officer deployed the taser and there was no PC for an arrest then b/c the defendant threw the gun away at the same time the officer deployed the taser. The Court rejected the argument. The officer did not deploy the taser until he saw the gun, so he had PC. The tip, the flight, the disposal of the gun all gave the officer PC for an arrest.

Defendant next argued that the FSA should have applied to him. The offense occurred on November 21, 2007. The Court cites Carradine, saying the FSA is not retroactive. This case is a Carradine case: sentencing and appellate briefing occurred prior to enactment of the FSA on Aug. 3, 2010.

CP and Search Warrant: Nexus and Staleness

What are the chances of getting a pic with a computer and something tying into staleness?!

United States v. Gillman, No. 09-6109 (6th Cir. Aug. 2, 2011) (unpublished). Panel of judges Boggs, Siler, and Van Tatenhove (E.D. Ky.). Child-pornography case. Defendant appealed denial of motion to suppress. COA affirmed that denial.

Facts:

Police accessed a peer-to-peer file-sharing network and saw a user with a given IP address sharing CP. The police contacted the internet-service provider and got information on the person to whom the IP addressed was assigned. Five months later, the police obtained a warrant to search the address-user's residence and computer. Police went to the home and the defendant made a statement. Police then executed the warrant (the defendant denied consent to search).

Defendant entered a conditional plea.

Issue:

The defendant argued "that the IP address was not itself a sufficient nexus between the sharing of child pornography and his residence because it was possible he used a wireless internet router—something that would have allowed anyone nearby to access the internet and share child pornography through his IP address.

Conclusions:

* Court rejects this argument, citing United States v. Hinojosa, 606 F.3d 875 (6th Cir. 2010). Under Hinojosa, the IP address established a sufficient nexus to connect the CP and the residence and computer. Potential use of a wireless router "does not negate the fair probability that child pornography emanating from an IP address will be found on a computer at its registered residential address."

* Five months does not make the info stale. CP is not a fleeting offense.

* Defendant was not in custody when he made his statements, so Miranda did not kick in. Eighty minutes of questioning does not necessarily mean custody.

Helpful Search Opinion Gone!

Remember the helpful search opinon in United States v. Domenech, Nos. 08--1220, 08--1221 (6th Cir. Oct. 7, 2010) (published)? Court found that certain evidence found in a motel room should have been suppressed. Yesterday, the Court vacated that opinion and issued an amended opinion, upholding the district court's denial of the suppression motion. Court also denied the government's petition for rehearing as moot. It was a panel of Judges Norris, Cook, and Griffin. Judge Norris originally dissented. Judge Griffin dissents in the amended opinion. Judge Norris wrote the amended opinion (Judge Cook wrote the original opinion).

The amended opinion does not reach the standing issue because the Court assumes there is standing and finds probable cause for a search of the motel room.

Court concluded: "the totality of the circumstances known to the officers when they initiated the search of Room 22 gave them probable cause to believe that there was a 'fair probability' that 'evidence of a crime' would be found in the room."

What did the officers know when they entered Room 22?

1) One officer testified that the motel was known for "a lot of drug activity."

2) A driver of a vehicle parked in front of Room 22 had behaved "evasively" in driving earlier that evening.

3) The officers checked the license plates of that vehicle and found that the owner had an outstanding arrest warrant.

4) The registration associated with Room 22 was filled out incompletely by a person called Rogelio, who had listed an automobile other than the vehicle parked in front of Room 22.

5) An officer was familiar with the motel and knew where the toilet for Room 22 would be situated.

6) After this officer heard his colleagues make contact with the occupants of the room, he observed (through a fosted window) a figure enter the bathroom and bend over the toilet. Based upon his experience, he concluded that the person might be trying to destroy something or flush something down the toilet.

The Court concluded that "While none of these considerations, when taken individually, would be sufficient to create a 'fair probability' that evidence of a crime would be found in Room 22, they strike us as more than sufficient to establish probable cause and exigent circumstances when viewed through the 'totality of the circumstances' prism."

The Court affirmed denial of the motion to suppress.

The Court upheld the sentences of 420 months and 234 months.

Judge Griffin dissented: "I would adhere to our original decision, see United States v. Domenech, 623 F.3d 325, 331 (6th Cir. 2010). In my view, the evidence was obtained by the police from a search and seizure not supported by probable cause as is required by the Fourth Amendment."

The dissent found that the Supreme Court has held that authorities "may not enter a private residence without a warrant unless both 'probable cause plus exigent circumstances' exist." The police did not have a search warrant before entering the motel room, so both probable cause and exigent circumstances were required to lawfully conduct a search.

The dissent concluded that "because the vague and general evidence of suspicious activity would have been insufficient to support a drug or weapons crime search warrant, it is similarly inadequate to establish the probable cause necessary to justify the warrantless search at issue."